Why the Flynn Interview Was Predicated
S E E D E D C O N T E N T
By Barbara McQuade Wednesday, May 13, 2020, 12:20 PM
Michael Flynn attends a campaign rally for Donald Trump in Phoenix, Arizona.
The Justice Department's motion to dismiss the case against former National Security Adviser Michael Flynn is flawed in many ways, but one of its weakest arguments is that the investigation of Flynn was not properly "predicated." This argument not only lacks merit—it also opens the door to the same frivolous argument from future defendants in other criminal cases. And it creates a dangerous incentive that could dissuade the FBI from fulfilling its duty to fully investigate criminal and national security threats.
Predication is a requirement under the Attorney General's Guidelines for Domestic FBI Operations, the FBI's internal guidelines for conducting investigations. To begin an investigation, the bureau must have a predicate—essentially, a factual basis to believe that a crime or national security threat exists. The level of predication required varies with the category of investigation, which ranges from assessments (the least involved level of probe) to preliminary investigations to full investigations. Predication is required to prevent the targeting of subjects for political or other improper reasons, an important reform after abuses of investigative powers in the 1960s and 1970s, but the bar is low. Even the highest level of cases, full investigations, requires as predication only "an articulable factual basis for the investigation that reasonably indicates" a threat to the national security.
Depending on the category under which a case is opened, the guidelines permit investigative techniques with varying degrees of invasiveness. For example, electronic surveillance may be used in a full investigation but not in an assessment or preliminary investigation. Importantly, all three categories permit FBI agents to interview a subject.
Attached as an exhibit to the Justice Department's motion to dismiss is the FBI's opening documentation for the investigation into Flynn—a subfile of the umbrella investigation into Russian election interference, known as Crossfire Hurricane. When large investigations are opened, subfiles are often opened on individual targets for purposes of administrative efficiency and division of labor. Dated August 2016, the FBI documentation stated that there was an articulable factual basis that Flynn "may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security." The file noted further that "Flynn was an advisor to the Trump campaign, had various ties to state-affiliated entities of Russia, and traveled to Russia in December 2015."
According to the Justice Department inspector general, the Flynn investigation was properly predicated as a full investigation. In his report on the FBI's conduct in the Russia investigation, the inspector general stated, "[T]he quantum of information articulated by the FBI to open these individual investigations [that is, the investigations into Flynn as well as Carter Page, George Papadopoulos and Paul Manafort] was sufficient to satisfy the low threshold established by Department and FBI predication policy, particularly in the context of the FBI's separate and ongoing investigative efforts to address Russian interference in 2016 U.S. elections."
Key to the Justice Department's argument in its motion to dismiss is the fact that, after four months of investigation without finding any derogatory information, the FBI was prepared to close its case on Flynn. A draft internal FBI document dated Jan. 4, 2017, shows that the bureau had sketched out a memo closing the probe, though the document includes the usual caveat that if new information were identified, the FBI would consider reopening the investigation.
But before the case was actually closed, the FBI learned that Flynn had spoken to Russian Ambassador Sergey Kislyak in late December 2016. According to the Justice Department's motion, the FBI had transcripts of the relevant calls, likely obtained through surveillance of Kislyak authorized by the Foreign Intelligence Surveillance Court. By this time, Flynn had been named as Trump's national security adviser.
In those calls, Flynn had asked Russia not to retaliate for sanctions imposed by the Obama administration as punishment for election interference. Flynn had also asked Russia to vote against a United Nations resolution regarding Israeli settlements. On their face, these calls potentially undermined the foreign policy of the United States. What's more, on Jan. 15, 2017, Mike Pence, then the vice president-elect, made public statements that contradicted the transcripts of Flynn's calls— a fact that, as documented in the Mueller report, "alarmed senior DOJ [Department of Justice] officials. " And so, the FBI decided to keep the investigation open. FBI agents interviewed Flynn on Jan. 24, four days after Trump took office. During that interview, Flynn falsely denied his statements regarding sanctions and the U.N. vote. He later pleaded guilty to one count of false statements for telling these lies.
The Justice Department now insists that the Kislyak call did not establish adequate predication for the FBI to conduct this interview. But there was no need for new predication for the interview—because predication had already been established. The case was still open after having been properly predicated, as found by the inspector general. Conducting an interview would have been a perfectly appropriate investigative step even if the FBI had not come across any new information. Interviews are frequently conducted at the end of a case to fill in gaps in evidence, explain events, assess a potential threat or satisfy agents that they have not missed any important facts. In the investigation of Hillary Clinton's emails, for example, Clinton's FBI interview was the last step in the investigation before it was closed—and then reopened months later.
But even if new predication were somehow required, the content of Flynn's calls, along with his apparent lies to Pence, provided a sufficient factual basis for further inquiry. The Justice Department motion argues that predication was lacking because the only potential crime at issue was the Logan Act, forbidding private citizens to negotiate with foreign governments—which has rarely been invoked, and which the Justice Department acknowledged at the time of the Flynn investigation would be difficult to prosecute. But this focus on the Logan Act completely ignores the counterintelligence purpose of the investigation, which was to determine whether Flynn posed a national security threat. By lying to Pence about facts known to Russia, Flynn had compromised himself as national security adviser. Flynn, who had access to the nation's most sensitive secrets, was now susceptible to blackmail by a hostile foreign adversary. Surely this constitutes "an articulable factual basis for the investigation that reasonably indicates" a threat to the national security.
Even if one were to accept the Justice Department's absurd arguments that fresh predication was needed and that this new information was insufficient for a full investigation, the Kislyak call certainly would have been enough for a preliminary investigation—which may be predicated on the basis of the lower standard of "information or an allegation indicating the existence" of a threat to the national security.
Or, at the very least, this new information justified an assessment, which requires no predication at all. An assessment requires only an "authorized purpose" to "obtain information about, or prevent or protect against" threats to the national security. According to the Attorney General's Guidelines, assessments are appropriate when techniques such as interviews "can avoid the need to proceed to more formal levels of investigative activity, if the results of an assessment indicate that further investigation is not warranted." Under any of these standards, an interview was appropriate.
In the short term, the Justice Department has harmed not only its own reputation for integrity through filing the motion to dismiss but also public confidence that the law applies equally to everyone, including the president's friends. It is telling that prosecutor Brandon Van Grack, who worked on the case for more than two years, withdrew on the day the motion was filed and that no career prosecutor signed the filing.
But what about the long-term consequences? When I worked at the Department of Justice as a national security prosecutor, there was a phrase we often used to describe the dangers of inaction: "He who does nothing does nothing wrong." The phrase suggests shirking one's duty for fear of making a mistake, exactly the wrong instinct when national security is on the line. Justice Department and FBI employees who have watched the drama of the Flynn case unfold may feel a chilling effect from watching the department not only unwind a case but also attack the reputations of public servants who made difficult decisions under unprecedented circumstances. As national security threats arrive in the future, there is a risk that the incentive is no longer to take swift action but, instead, to do nothing wrong.
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Wow. Finally, an article from someone who sounds like they actually know what they are talking about.
Way above the heads of many here. All that legalese and law stuff. Their speed is "Merica" and 'Fake News'.
very strongly and bigly stated is this article, so by the bumbling bigot bistro's interpretations, it will be labeled fake news, hoax skews, N Deep State for shallow thinkin kool aid drinkin Blews, asz shit for brains not, thinkin bout the M TV Real world they think they live in, asz Trumps the Producer, asz he produces A HOLE LOT(s)
AS in so much Bovine Excremeant for them, that they are ALL FULL OF IT !
.
but, i'm sure they will explain it to us all
You should probbaly use an honest source and not rely on partisan hacks with a track record of always being wrong. . Lawfare embarrassed itself throughout the Russia hoax by providing fake facts and analysis (It's FISA articles are particularly hilarious in retrospect). There little cannon they would tweet when they hyperventilated about some new "evidence" that would get Trump is a running joke.
No one is arguing the original investigation didn't have a legal predicate. Of course, after months of investigation the case was closed because no evidence existed that Flynn was a risk to national security. And, of course, no evidence was ever discovered that he was. Instead FBI higher ups used an innocous conversation as a basis to go around established protocal to get an interview with him under false pretenses with the express purpose of interfering in the Executive's branch personell decisions.(as the notes FBI make clear).
This is really a sloppy article. This statment "Flynn had asked Russia not to retaliate for sanctions imposed by the Obama administration as punishment for election interference" is a blatent falsehood.
imagine thinking mfbc is an authority.
Imagine trying to pretend that MFBC isn't specifically cited in NT's CoC as exactly that.
Yes, we really should just take your word for it, given your history of nonpartisanship.
i take his word for it,
and , make it dirty
given your history of nonpartisanship.
You should probably pay attention to my history of being correct on these issues. FISA gate, the whole Collusion debacle, including the Steele dossire, etc.. have played out like I said they would while posters relying on the hystrical yammerings of left wing sites like Lawfare have been proven wrong, again and again. Do you not remember the last few years on this site? All those collusion crimes that never panned out? How the FBI would never, ever submit unverified information tp and withhold relevant from a FISA court? Good times!
I'm one of those people who stop trusting sites after their anaylsis is proven wrong, and often dishonest. But that's not a problem for some.
Weren't committed? Or didn't result in a conviction by the Senate? The two are not the same, Sean.
Try not alleged.
Read the Mueller report.
The one in which Mueller said that if he could have exonerated Trump, he would have? That report?
Please don't conflate topics. I'm talking about the Mueller report on the supposed collusion. I'll quote to make it simple:
"the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities."
By all means, if you want to waste your time, please read the Mueller report and point out where Mueller found evidence of a conspiracy between any member of the Trump campaign and Russia. Just please don't move the goalposts again.
Ok, the Mueller report on supposed collusion. I notice you neglect to mention the Mueller report on obstruction of justice regarding the investigation of collusion. Intentional on your part, I'm sure.
That's still the report in which he was not exonerated, Sean. The report found that his attempts to obstruct were foiled by his staffers. He attempted to obstruct the investigation, repeatedly. Why did he need to do that?
Since I was talking about collusion, I referenced the section of the Mueller report that explains his collusion investigation.
But if you insist on moving the goalposts and talking about process crimes, the DOJ is clear that even if everything Mueller alleges can be proven, no process crime occurred as Mueller admits“the evidence does not establish that the President was involved in an underlying crime related to Russian election interference."
From the Mueller report:
So, the Trump campaign was willing to collude, but Mueller's investigation, which encountered witnesses who refused to testify or lied under oath, and deleted communications, was unable to establish proof of conspiracy. I wonder if that investigation actually arrived at the truth, or if you're just willing to accept as truth that Trump and company wanted to conspire with Russia, and had the opportunity to conspire with Russia, but for some reason didn't.
I never said he did, although a case could be made for that. He certainly had shitty cooperation from the subjects of his investigation, AKA obstruction.
The man specifically hired to find that specific thing found plenty of indications of it.
Prove it. I assume you can produce the NSA tapes.
Otherwise this statement is the weakest argument ever.
Just read the statement of the offense posted below. It’s in plain English for you
When is the transfer of power from one Administration to the next?
Or do you seriously think we have two Presidents from November 8 to January 20?
How many single events did Flynn admit to, have bundled as a sweet plea deal for the once influential General,
and plead guilty to TWICE in front of the same Judge?
It should be a done deal, long ago.
Sentence the man.
Let him admit his guilt a third time when he accepts the presidential pardon.
How do you know?
From the Statement of The Offense...
You posted it. Read it again. Not retaliate is very different than don’t escalate and ask for a reciprocal response
You are splitting hairs. Retaliation is an action taken in response to a perceived slight. From the same SOF:
I'm sorry, I was told this was such a reputable legal source that it would be over our poor little heads. And, yet, this op-ed, filled with "legalese" can't even get the basic facts of what Flynn allegedly did correct. "retaliation" and "escalation" are two distinct concepts with different meanings. Yet, this supposed expert, can't even manage to report facts correctly, yet we are told their analysis Tthat is premised on mistaken facts is somehow reputable.
Not by me. I chose this article because of clarity and its fit with my understanding of the facts at hand. I make no claims as to the authority of the author. Take that up with her.
And I know the difference between the two words:
Retaliate " to return like for like, especially : to get revenge"
Escalate : to increase in extent , volume, number, amount, intensity, or scope
I still think it is splitting hairs. If that is all that you can come up with for an argument against the article, then I will accept your criticism of the one supposed error and tell you that the rest of the article stands for all intents and purposes.
Spell check is a free feature of NT.
We should all use it.
Fat phin gers lead to a lot of red lines
huh
No, they don't undermine anything, and the FBI knew that at the time. When it was suggested these actions might violate the Logan Act, even Mary McCord - head of the DOJ National Security Division - called that idea "a stretch." It's perfectly normal for the incoming administration to be communicating with representatives from other countries to let them know what their policies will be.
This is why treating Flynn like a criminal was so absurd, and they all knew it.
And one more thing:
So what exactly is it that you wanted? Did you want Russia to retaliate? You actually wanted Russia to take action against the United States? I sure as hell hope not. And that being the case, you should be thanking Flynn for his service to this country. Again.
From the McCord link in you comment:
“The feeling among NSD attorneys was Flynn’s behavior was a technical violation of the Logan Act, but they were not sure this would have a lot of jury appeal, or if pursuing it would be a good use of the power of the Justice Department,” according to an Aug.15, 2017, FBI report from an interview with former Deputy Attorney General Sally Yates.
Yes, in the same way that crossing an empty street at 3 a.m. is technically jaywalking. But any cop who would write someone a ticket for it would be universally condemned as a fascist douchebag abusing his authority, and one who clearly fails to see the spirit of the law instead of the technicality.
Yes. A piece of legislation widely assumed to be unconstitutional, which is a big reason why no one has ever tried to actually charge anyone with violating it.
Terrible analogy.
False.
An investigation into Russian election interference was predicated upon information concerning known Russian activities. Michael Flynn was interviewed as part of that investigation to obtain information pertaining to Russian activities. Michael Flynn was not being investigated. At some point in the process, the interview of Michael Flynn became an investigation of Michael Flynn. Michael Flynn was a material witness and not the subject of investigation.
The claim that Michael Flynn "may wittingly or unwittingly be involved in activity on behalf of the Russian Federation" isn't an adequate predication to open a separate criminal investigation into the activities of Michael Flynn. And Michael Flynn hasn't been indicted and prosecuted for witting or unwitting illegal activities.
John Podesta provided Russian hackers access to privileged information concerning the 2016 election. The access provided by Podesta materially benefited the Russian Federation. Podesta "may wittingly or unwittingly be involved in activity on behalf of the Russian Federation".
Is that adequate predication for a criminal investigation of John Podesta?
Read that statement. Reread it until you see that you just said that a suspicion about a person is not adequate grounds to start an investigation. Presumably, then, you have to know that what has happened really happened before you can look into whether it happened or not?
Fact: Michael Flynn lied to the FBI while knowing it was a crime and admitted to such under no compulsion.
There is unequivocal evidence that Flynn lied. Flynn signed a plea agreement that states that he lied multiple times and he stated under oath that he knowingly lied to the FBI multiple times.
well, then he openly admitted to Lying about Lying then, and might have even Lied about Lying about Lying...he might even be like Trump, and LIE, when sitting up in bed.
So why are you supposin he Lied to the FBI, cause he could of confessed about Lying about Lying , but do know , somewhere out there, the TRUTH, ain't lying !
.
.
ps: The Truth ain't Lying next to Trump
not surprising a Trump defender doesn't have a problem with Another, LIAR, but some of US do.
our condolences
Yes.
Flynn stated under oath that he was guilty of lying to the FBI, that he was aware BEFORE the interview that it was illegal to lie to the FBI AND that the FBI did NOT coerce him into lying.
maybe,
Flynn was LYING about not being coerced ...? or
not Lying about BEing coerced, or
Lying about BEing not coerced into Lying about BEing coerced...
.
It doesn't matter what the ACTUAL TRUTH IS
they refuse to accept the reality of it,if it proves how wrong and stupid some might have been supporting the LIAR in CHIEF, cause if it does, they cannot support it, and will attempt ANY excuse to, rationalize it, or, spout ANOTHER DAMN LIE about it.
Unlike Trump and Flynn, i'm not LYING, while sittin up in bed, i'm Drinkin a damn BEER!
Lied about what? Michael Flynn was interviewed as part of an investigation predicated on Russian activities to influence the election. The meeting with Russian ambassador Sergey Kislyak that Flynn supposedly lied about occurred after the election but before Trump was inaugurated. The election was over at that point.
The FBI expanded their activities well beyond investigations pertinent to the election. What was the FBI's justification for investigating the preparations of the incoming administration to make foreign policy decisions? What was the Obama administration's justification to meddle in the incoming Trump administration's planning process?
Was the FBI asking questions about issues beyond their predication for investigating Russian activities to influence the election? Has the FBI lied? Has Robert Mueller lied?
So after an election, the investigation should just stop?
They should all the sudden stop listening to certain Russian nationals calls just because an incoming administration may talk to them?
And that incoming administration is still not in power yet.
And now you are going to ask if the FBI tried to influence the election, after the election happened.
If the agency wanted to influence the election, they could have leaked what was going on at the time, yet they didn't.
Well I take that back, maybe they did try to influence the election with their announcements about Clinton close to election time.
Guess who benefited from that.
And no matter what excuse people come up with, donald and Pence fired Flynn because they were lied to by him.
All of this is just pandering by donald to gin up support for him by using the belief that the 'deep state' is out to get him and any one that works for him.
It is all bullshit. Of course now with another IG being fired, for no reason, he is making sure there will be no oversight of what he is doing.
And a lot of donald supporters seem just fine with this.
The mandate was to investigate Russian activities to influence the election. That is not predication to investigate activities unrelated to the election.
The apparent effort was to influence the planning of the incoming administration and shape policy before the administration could take office. That doesn't have anything to do with investigating Russian activities to influence the election.
Clinton private email server wasn't just a security risk. Clinton violated Federal procurement regulations and violated emolument restrictions. Where was the State Dept. Inspector General? There wasn't a permanent inspector general at the State Dept. during Clinton's tenure as Sec. of State.
Trump fired Flynn for political reasons.
Sec. Clinton didn't have a permanent inspector general during her tenure at the State Dept. Steve Linick was nominated as State Dept. IG after Clinton left. Steve Linick was the IG responsible for reviewing Clinton's use of a private email server for public business. Linick criticized Clinton for inappropriate preservation of public records.
Linick's handling of the Clinton matter compared to handling of Pompeo's activities does appear to indicate political motivations.
If you are talking about Mueller's mandate, he was actually given a wide berth to go where the investigation took him.
So now the new thing is they were going after donald's people to influence foreign policy on their own. This is a new one on me. I suppose you have proof of this? Or just heard it from fox news talking heads. So they were going to shape foreign policy and then donald would take the office and could shape it how he wanted anyway. What you are accusing makes zero sense.
Clinton's server was not illegal at the time, no matter what some say. I think the process and rules have changed now.
donald even has a tweet that he fired Flynn for lying. It is in his own words so there is no denying it.
Sorry but how can you call Linick political when he actually condemned what Clinton had done? What is political is firing him, for no real reason. The news is the idea came from Pompeo himself because he was being investigated and may have been thinking about a senate run.
Even Collins and Romney have come out and said there was no legal basis for it.
I am sure that you won't mind referencing proof of these allegations.
False. Flynn was interviewed because he lied to Pence and others and thereby opened himself up to kompromat. PERIOD, full stop.
False again. Flynn admitted to lying about a PHONE conversation with Kislyak.
The FBI was surveilling the RUSSIANS.
What evidence do you have that they did?
Go read the Horowitz report.
Are you asking about the entire agency or a particular Agent? I'm pretty sure that FBI Agents lie all the time. The SCOTUS ruled that LEOs can lie during interviews. No worries.
WTF does Mueller have to do with Flynn lying in a January 2017 interview?
He lied about the details of his phone call with Kislyak.
So if you lie when your Mama catches you with your hand in the cookie jar that is somehow worse than lying when you have cookie crumbs on your chin ???
What part of ,"I lied to the FBI before they closed the (Properly predicated) investigation," don't you get?
Well, glad that you asked: ( Link )
Michael Flynn wasn't prosecuted for having his hand in the cookie jar. Flynn wasn't indicted and prosecuted for illegal activities. Neither the FBI or the Mueller investigation team alleged that Michael Flynn did anything illegal.
The quote from McCabe's book highlights the concern over policy. The Obama administration had imposed sanctions on Russia which is a hard line foreign policy towards Russia. The incoming Trump administration had indicated a desire to improve foreign relations with Russia. The incoming Trump administration was indicating that the sanctions would not be continued.
The effort by the FBI, intelligence community, and subsequently the Mueller investigative team was deliberately intended to meddle in the policy planning of the incoming administration. The Obama administration attempted to poison any attempts by the Trump administration to improve foreign relations with Russia.
The quote from Andrew McCabe's book is actually quite damning. The intelligence assessment mentioned in that quote was prepared for Barack Obama. The effort was directed towards involving President Obama to provide cover for bureaucratic activities that exceeded authority or predication.
No shit! Really?
What world are you living on??? Here .
Sorry but what you are saying still doesn't make any sense.
If the Obama administration wanted to sabotage the incoming administration, they did a really shitty job.
From everything I have read (with the exception of right wing media), Obama tried to be very accommodating to donald. Hell he even supposedly warned donald about Flynn.
What you are accusing still does not add up.
The only thing Obama could have done is what he did. Sanction Russia.
No matter what any supposed sabotage would be, the new administration would still be able to talk to leaders and create their own path. Nothing could or can change that.
Acting like there was some concerted, orchestrated plot just to get/sabotage donald, is nothing but deep state nonsense. And like I said, no matter what a previous administration did or didn't do, the new administration can go in whatever direction they want.
Funny too that according to this so called devious plan in action, donald was too stupid to not surrender to the effort.
I thought I had lost a 420. Then I looked and had a 315.
Actually, the FBI KNOWS that Flynn failed to file as a foreign agent lobbying for Turkey and lied about it to Trump and the FBI. They didn't charge Flynn for that as part of his plea agreement. Guess that agreement is moot now so they should prosecute him for that now too.
I wonder if that now opens his son up to prosecution.
They should have prosecuted him from the get go.
I find it disgusting that conservatives here are always so gung-ho about prosecuting people that they have NO evidence against while at the same time whining about the prosecution of people that have overwhelming evidence against them.
They could have condensed the article down to this
they still wouldn't understand it